Illegally-obtained evidence which is suppressed during criminal proceedings should likewise be suppressed during parole and probation revocation proceedings pursuant to Article I, Section 8 of the Pennsylvania Constitution/ Difference in analyses of search and seizure claims under U.S.Const. amend. IV and Pa.Const. Art I, §8

Commonwealth v. Khiri Arter, 63 MAP 2015 (12/28/16)


This is the 5th decision in a month that the Supreme Court has ruled in favor of a criminal defendant!

Khiri Arter was arrested when his county probation officer, cruising with a police officer in an unmarked car in a high drug activity area,  saw him conversing with another guy on a street corner. The PO asked the officer to stop the car, and the PO approached him. He told Mr. Arter he was his PO, gave him reporting instructions, and then asked if he could search him, a question Mr. Arter met with incredulity. The PO nevertheless patted him down. Found a bulge, and the bulge was crack cocaine. Mr. Arter was arrested, a search incident to the arrest yielded more drugs, a scale, and a cell phone, and he was charged by the police with PWID and by the PO with a violation.

Before his trial on the charges, Mr. Arter sought and obtained suppression of the drugs because the search violated 42 Pa.C.S §9912(D)(1)(i) ((1)  A personal search of an offender may be conducted by an officer: (i)  if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision; (ii)  when an offender is transported or taken into custody; or (iii)  upon an offender entering or leaving the securing enclosure of a correctional institution, jail or detention facility.) The case was nolle prossed. Before the parole revocation hearing, Mr. Arter moved to suppress too, but not under the 4th Amendment, because the search was not barred by that, but rather Article I, §8 of the Pa. Constitution. The motion was denied, and his parole revoked. The Superior Court affirmed.

The Supreme Court performed the very detailed analyses required by Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) when a defendant asserts that Pa.’s search and seizure protections are greater than those afforded by the Fourth and Fourteenth Amendments. You should read it so you know how to raise these issues going forward, because it places a lot of emphasis on how the issue is pled and litigated below— that is critical to preserving the issue. Doing that analysis in this case, and relying especially on the fact that the legislature had passed a law restricting the circumstances under which probationers and paroles could be searched, it concluded that we conclude that the policy interests in this Commonwealth weigh more strongly in favor of applying the exclusionary rule to parole and probation proceedings. Importantly, and in contrast to 4th Amendment suppression rationale, the Court concluded, “application of the exclusionary rule to revocation proceedings is in accord with this Court’s consistent and repeated emphasis that the primary purpose of the exclusionary rule under Article I, Section 8, is protecting the individual privacy rights of our citizens, as opposed to deterring police misconduct.”

That I am quoting this case so much means you should read it carefully— rote insertion of  Article I, §8 next to the 4th Amendment in your suppression motions might not be enough to preserve your claims.

The image is of John Dickinson’s copy of the Pennsylvania constitution of 1776, with handwritten proposals for changes, from Foner, Give Me Liberty: An American History, Fourth Edition

It is no longer necessary to include parallel cites to Pennsylvania reports in briefs

In Re: Order Amending Rule 2119 Of The Pennsylvania Rules Of Appellate Procedure, April 14, 2014


This is old news, but it was news to me. You no longer have to include the  “___Pa.___” citation when citing Pennsylvania Supreme Court briefs— the Atlantic Reporter cite is sufficient. That will cut some time off the finishing up of my briefs. If you already knew this, and I just kinda wasted your precious time, don’t think twice, it’s all right. (Oh, the hours I spent in the 80’s with Shepards finding those cites!)

Superior Court enforces pre-SORNA agreement to limit sex offender registration even though motivation for plea deal not mentioned at time of plea

Commonwealth of PA v. Jonathan Ritz, 2016 PA Super 296 (12/21/16)

The Superior Court affirmed a CP court’s enforcement of a 2005 plea agreement that resulted in the defendant’s Megan’s Law, and now SORNA, registration being limited to ten years, rather than ballooning to lifetime, even though the Defendant’s motivation for the plea— a ten year instead of lifetime registration— was not set forth at the time of the plea. This is long and thoughtful decision. The case contains a good review of the development pre-registrant case law to date, based on contract law principles, that has enforced pre-SORNA plea deals that arose from a defendant’s desire to limit the length of time he/she would have to register, but adds a new wrinkle. In this case, and in some of the prior cases, the defendant’s motivation to limit the period of registration was not mentioned at the time of the plea. Instead, the Court looked at the facts and concluded that had to be a factor in the plea, i.e., the facts clearly called for a lengthier period of registration (i.e., conviction of a more serious crime) but the Commonwealth acceded to a plea to lesser charges. The language of the Court is worth quoting: “The terms that Ritz and the Commonwealth affirmatively placed on the record provided ample consideration to both parties and created a binding and enforceable agreement between Ritz and the Commonwealth.” The Court also rejected the Commonwealth’s argument that prior judicial interpretations of the Contract Clauses of the United States and Pennsylvania Constitutions allow legislatures to modify the terms of the plea agreement. Not in this case, the Court ruled.

Evidence of pry marks insufficient to convict of criminal trespass

Commonwealth of Pennsylvania v. Paul Furness, 2016 PA Super 298 (12/22/16)

A defendant convicted of criminal trespass, attempted burglary[1] and other crimes had the criminal trespass conviction reversed because the sole evidence of the criminal trespass (the evidence of the other crimes was the homeowner seeing the guy trying to break into the house) was pry marks, or indentations, on a window. If the tool had in anyway broken into the structure, the trespass would have been proven, but falling short of that, the trespass conviction could not stand. The criminal trespass sentence was vacated and the case remanded for resentencing.

[1] I eschew the Oxford comma.

Superior Court applies Birchfield to suppress 2014 blood draw underlying DUI conviction

Commonwealth of PA v. David Eugene Evans, 2016 PA Super 293 (12/20/16)

This case is notable because it applies  Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016) to a Pennsylvania implied consent/blood draw DUI case. I think this is the first published Superior Court opinion to do so. The arrest occurred in 2014, so that Court is willing to apply it to cases pending on appeal where the issue was timely raised. Though he did not directly raise the issue below as Birchfield had not yet been issued, Mr. Evans’ counsel diligently pursued it on appeal. The Court ruled that the implied consent law impermissibly imposed penalties for non-compliance with an unconstitutional warrantless search, the evidence obtained from the blood draw could not be admitted. The case was remanded for proceedings without the unlawfully seized evidence.

Courts sentencing juveniles for homicide must consider Miller & Knox factors in addition to those in 18 Pa.C.S. §1102.1

Commonwealth v. Terrill Javon Hicks, 2016 PA Super 257 (11/18/16)

The Superior Court remanded a post-Miller v. Alabama re-sentencing of a juvenile who had previously received a life sentence for murder because the sentencing court did not consider the factors set forth in Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. Super. 2012) and  Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012) that must be assessed in such cases. Reliance on the factors set forth in 18 Pa.C.S. §1102.1 is not enough. This case might be changed by the Pa. Supreme Court’s pending consideration of Commonwealth v Qu’eed Batts, 45 MAP 2016, but until then there might be many cases waiting to be overturned where CP judges were not asked or refused to look at those cases’ factors.

Appeal de novo of district court conviction cannot be used to reinstate charges that resulted in acquittal

Commonwealth v James Arthur Ball III, 23 MAP 2015 (9/28/16) 

Some strange stuff happens, and once in a while the PA Supreme corrects it. A guy was charged with DUS-DUI, but the DJ only convicted him of DUS. The guy appealed, and the Commonwealth reinstated the DUS-DUI charge, and he was convicted. On appeal to the Superior Court, the defendant won on double jeopardy grounds, and the Superior Court dismissed all charges. On appeal, the PA Supreme Court said that the DUS conviction should not have been thrown out— it ordered a new trial— but affirmed that once a DJ has implicitly acquitted by convicting on a lesser charge, an appeal de novo is not a waiver of the double jeopardy rights against being convicted of things you were acquitted of.

Pa. Sup.Ct. rules that intercepted inmate-visitor conversations are subject to the Wiretap Act if they were not intercepted on a device connected to the regular telephone system

Commonwealth v. Raheim Cardel Fant 66 MAP 2015

Anyone with a trial involving  should read this. The PA Supremes ruled that intercepted inmate-visitor conversations are subject to the Wiretap Act if they were not intercepted on a device connected to the regular telephone system we all use, and affirmed the suppression of such conversations.  I kick myself for not thinking about this, as I always thought the lack of an expectation of privacy in a prison trumped everything.

Super. Ct. sets forth standards for revocation of State Intermediate Punishment (SIP)/ extending time limits for appealing revocation sentences after seeking reconsideration

Commonwealth v . Michael A. Flowers, 2016 PASuper 230 (11/9/16)

Good case from the Superior Court on standards for revocation of State Intermediate Punishment, reasons for sentencing, and the time you have to appeal a revocation of revocation of parole, probationer or SIP.  The defendant’s SIP was revoked and he was sentenced to confinement, and he sought reconsideration, which was denied, after which he appealed, more than 30 days after  the original sentence. At the colloquy the judge said he had 30 days from denial of revocation to appeal, which was wrong— that only applies in the case of the appeal from the original sentence. (Many judges and DA’s, not to mention defense lawyers, do not know this.) His late appeal was therefore deemed timely.  The Court set out the law on when there is a violation of SIP— there was— and then did a nice discourse on what is and is not a statement of reasons at the time of sentence, which in this case there wan’t/ Remanded for resentencing.